DELEGATED LEGISLATION

THE CONCEPT OF “DELEGATED LEGISLATION IN USA”

The term “delegated legislation” basically means a defined set of boundary that has been specially guarded by the constitution relying on which the legislature based on all its privileges transfers or delegates the powers to other administrative bodies assigning them for rule making . This concept of “delegated legislation” was meant with the purpose of expanding the government’s power and give a helping hand to the government in power to deal with the socio-economic situations in the nation.

In case of “United states of America”, the theoretical aspect of the state does not approves of the concept of “ delegated legislation in the state”. The USA constitution is based on two major concept of  “Separation of Power” and “Delegatus non potest delegare”.[1] There is truly no context or textual evidence through out the constitution of USA which indicates that it “delegates powers” from the “legislature” or the “executive”.

The USA historical background suggests that the federal government or congress itself derives powers from other sources then how it is suppose to “delegate its powers”. The propound political thinkers and philosophers who gave birth to the “American constitution” had reasonable views about the concept of “delegation of powers” .  The propound political philosopher John Locke was of the views that the legislature certainly cannot assign its powers legislative powers to any individual neither can it establish it somewhere. He was certainly of the opinion that the legislative body and the executive body should be ruled separately because when individuals are given the “power of law making”  or enforcing laws it goes in single hands and there is a probability that this can result in exploration and misuse of powers.[2] Further individuals can also use these set of powers to exempt the governing laws over them and can dictate these set of laws for the personal benefits. This concept of separation of legislative body from the executive body is basically knows as “Delegatus non potest delegare” which was given by Locke.

Later on Montesquieu crafted the idea of “Separation of power” . Montesquieu was of the opinion that any individual should not be handed of all the powers of the government to exercise which is the “legislative, executive and judiciary”. This concept of “Separation of power” ideated that legislature should specifically work on making laws and not enact or administer them . Correspondingly executive must not intervene with the works of “judiciary and legislative”. Likewise Judiciary too shall be free from both the governing bodies.

Each governing body should work separately based upon their functions and powers. The Congress specifically holds the power of mandating the legislation in “USA” where as president has the exclusive power of to carry out the functions of execution and lastly judiciary is carried out by the “Supreme court of USA” and necessarily to other courts as well depending on other factors.

As a result of this concept of “Separation of power” it was the congress only which exclusively functions for the rule of law making  and no other governing bodies have the rights of interfering in the process of law making. There are many a times it was argued that when the congress itself derives its powers from any other sources how can it supposedly further “delegate its powers”.

The “Supreme court of USA” clarified in the case of Field v. Clarke[3] that power bestowed in one department shall not be intervened by any other governing body. However it has certainly been noted that in several instances “non-legislative power such as rule-making power or quasi-legislative powers can be delegated by Legislature to the Executive”. It was then further noted in Wagman v. Southard[4] where in chief Justice Marshall pointed out that distinctions were not clearly crafted with respect to different subject matter , due to which significant were thus governed by the legislative and the subject matters of little less interests were passed on to the executive board in order to address the detailed framework of the legislature.

THE CONCEPT OF “DELEGATED LEGISLATION IN INDIA”

There are quiet many a instance where the status and constitutionality of “delegated legislation” has been figured in India . This concept of “delegated legislation” has been defined in two separate ways i.e “delegated legislation” before and after independence.

Before the independence era – It was evident from Queen v. Burah[5] that provisional legislation based on terms and condition was mandated by the “privy council”. The “privy council” did not approved of “delegated legislation” based upon its reasoning. The lieutenant officers were assigned with the exclusive powers of governing the administrative bodies of the “civil and criminal justice system”.  “The privy council” was of the opinion that subordinate bodies should be enumerated in the process of framing and drafting the laws and regulation as these were the people who were ultimately going to be  the  part of the  “law making” as well as held powers mandating to other bodies with the necessary legislative characteristics which again the legislature itself has derived the powers from the constitution itself.

 Further in King v. Benori Lal Sharma[6], the terms of law were again enforced by the “Privy Council”,  as showcased in Queen v. Burah. Particularly in “King v Benori lal” the fact that governor generals mandated the issues related to “emergency ordinances” were challenged under the case. The question was based on the grounds that the governor general upon acting those powers actually took the authority of the “provincial government”. Further the court decided such an act did not portrayed the ideal concept of “delegated legislation”. The “ Privy council” commented on the matter that such an act out casted a different from of legislation with certainly different “legislative powers” where by the “local administrative body” determines the local application of “province of state”.

After the independence when the British aristocracy was finally been kicked out of the country the constitution did not approved of the same set of rules as mandated by the “British province”. The Framers of the “constitution” continuously discussed on the matter  how should the “legislative powers” should be presented in the country as well as how much power shall be given to the legislation. “It cannot be said that an exhaustible right of delegation is inherited in the legislative power itself.”[7] No doubt the term “ delegated legislation” was not exclusively expressed anywhere under the “Indian constitution” however the analysis of  “Article 312” fairly indicates the concept of “delegated legislation” in the constitution. This particular article hold s ups the power of setting up new branches of “All India services” upon achieving a majority of two-third votes.

It therefore tends to mean that certain statutory powers would be transferred to the “All India Service Recruiter”. There are several situations wherein the “delegated legislation under the constitution of India” can be identified.

As seen in the case of D.S. Grewal v.The State of Punjab[8]  which challenged the “All India Service Act 1951” based on the constitutionality. The plaintiff of the case was working under the “All India services” and was sent to Punjab. Where the plaintiff was holding the post of a “Superintendent of Police” in most of the districts but he was reverted back to the post of an “Assistant Superintendent of Police” and was sent to Dharmashala. Then after his posting in Dharmashala in same month the plaintiff was informed that he has been charged in pursuant to the rule 5 of the “All India services”. Based upon the charges an enquiry committee was immediately set up against the plaintiff under Shri K. L. Bhudiraja. The plaintiff then filed a suit under the “Article 226” of the “Indian constitution” and question the constitutionality of the Act as well as raised questions upon the legal basis of the enquiry committee in the Punjab High court.

The “supreme court” while deciding on the factor of ‘delegated legislation” as prescribed under “Article 312” of the constitution stated that the power of the “central government” to post and suspend the officer without any reasonable justification is clearly misuse of the power. And as prescribed within the “Article 312” of the constitution nothing as such can take away the “powers of the legislation”.

While in the case of Panama Refining Co. v Rayan[9]in “USA” under the “Section 9(c)” of the “National Industrial Recovery Act 1933” gives  “president” the authority with some special powers relying on which the “president” may order any sort of thing and if such order are being violated that may lead to violations of the law and individuals or entities can be punished according as per the said provision.  Particularly in this case the “president” by the means of the executive board issued a restriction on the appellants business and assigned the protection of the internal board to vest all sort of power as prescribed under the mentioned Act. Following to the “president’s” order the internal board acted accordingly . This case particularly challenged the constitutionality of the “National Industrial Recovery Act 1933” as well as raised questions on the unconstitutional unsolicited “delegation of legislative power” carried by the congress.

Further the “United States” “Supreme court” while delivering the judgment addressed that the “delegation of legislative” power carried out by the “president” amounted invalid as well as void in this case.  The court clarified that it is the congress who holds such powers and who has the power to delegate it further to the “executive” based on only two circumstances.  Congress can transfer those powers to the “executive” on the first note when these principles or policies has been exclusively mentioned in the statute and on the second note when it is important to lay down the guidelines and approve the administrative body to frame rules under the subordinate limits of those powers.

BENEFIT OF A “DELEGATED LEGISLATION IN THE COUNTRY”

• Helps in reducing the burden of the “Parliament” –  “The Parliament” must enact a range of laws within a limited time of its existence. Such extensive study must be carried out in such a way that the rules of the law can hardly be enacted in depth. In such a case where “parliament” dedicates all of its time in laying down legislation for every minor specifics it will indeed require a lot of time and this will ultimately reduce the amount of work the “Parliament” actually needs to deal with. Thus it’s a huge time taking process as well as often considered to be costly to manage the procedures. There is also a need to resolve this burden and it can only be achieved by delegating one “legislative authority” to the “subsidiary or to the executive”.
• In the matters of particular expertise– As since we are evolving everyday with technology and are achieving milestone in the technical field and advancements. Where there is such a rapid growth in the technical field bringing changes in the lives of the common people it needs to be regulated by set of rules and for which parliamentarians need to be fully educated in the subject matter to address and understand the concerns. But as a universal fact its is indeed known that “we cannot be experts in every field” . Therefore it is indeed required that parliamentarians should discuss and develop upon the board lines issues and the subject matters which needs the understandings of experts needs to be delegated to the experts of the particular field. In this way the “law making” process will also function smoothly without much dig pits being in the way.
• Decentralized power of decision making– In the matters of local constituencies its is indeed considered that the local authorities have better understanding of the situations than the parliament as they are much familiar with the circumstances and the concerns of the local people . Hence they can be better in enacting laws for the local constituency , therefore in such cases “delegating” powers and the theory of separation of powers acts aptly.
• In the time of emergencies- At the time of emergencies , “delegated legislation” is best way to figure out for solutions in proper time where as “parliamentarian” process are much more time taking an d needs to have a proper number of majority in order to conclude any sort of thing. At certain times “parliament” does not have the adequate amount of time to frame a legislation as well as keeping up with the safety policy of nation. For example – “The Prevention of Terrorism Act” was drafted in order to deal with terrorism in the “United Kingdom” but now the same Act stands invalid and restricted in the state as a matter of safety procedure. Hence this concludes that the concerned “delegate authorities” must deal it in their way.
• In the concept of “delegated legislation”, “Parliament”  frames the laws in a wider abstract form and now the executive will now have to draw in the minute details. Consequently, these small information may be modified automatically even without amendment being made by the Parliament. It is also versatile and the laws made in this manner will better address the requirements of the modern society.

“JUDICIAL CONTROL OVER DELEGATED LEGISLATION”

The concept of “delegated legislation” in “India” can be questioned in the court every time when it is found to be unreasonable, excessive beyond its region of power or in the cases where it violates the “constitutional principles”. This can be done in two ways , firstly on the basis of “substantial ultra vires” and up next on the basis of “procedural ultra vires”. The standards through which the law enacted by that same “executive” can be found invalid by the court is it shouldn’t be treated as incompatible by the “constitution or ultra vires” the “parent act” through which it might have the authority to make the law. The ability to review the concept of “delegated legislation” is has been vested upon the “Supreme court” or the “High court” of the country.[10]

Every “delegated legislation” somewhere in the other or once in a while clashes with the guaranteed “fundamental rights” and every time when such a situation takes places , if the crafted Act violates the provision of “fundamental rights” the “delegated legislation” is then paralyzed and is not functional in the country. This concept has been same through out both in “USA” as well as in “India” as in both the countries the “judicial control over delegated legislation” is mandated by the way through of the “doctrine of ultra vires”.

However in “USA” there are basically two major approaches through which the “judiciary” justifies the “delegated legislation” that is-

• “Filling up the details approach”
• “Intelligible approach”

The first principle of approach states that , over here the congress frames certain polices and guidelines and being within the limits of it the “executive” further have the fill up the loopholes that has been left out by the congress.[11]

The second set of approach is basically the court reviewing the provided “delegate legislation”.

CONCLUSION AND SUGGESTIONS

“Delegated legislation” literally explains that legal principles developed in compliance with the provisions of the Act of “Parliament” by a competent individual. Despite the fact that “legislation” is within the competence of the “legislative body”, it can, by resolution, transfer its ability to separate bodies or persons. The motion that transfers these power is recognized as the “Enabling Act”. Through “Enabling Act” the congress shall lay down broad rules as well as the standards of adequate principles by the “delegated authority”. In India the where delegated legislation is controlled by the “Parliament” and in such a case it is important to strengthen the “advisory boards” functions in order to develop new laws in the country relying on adequate standards of theories and principles.

There is certainly differences in the administrative system of “USA” and “India” in terms of “delegated legislation of power”. There is no such expressed sources or agreements that dictates the “constitution” to approve of any authoritative power. When the founding fathers of the “constitution” mandated the constitution they framed it with the motive of the flexibility of the “constitution” and keeping in mind when from time to time certain principles needs to be changes as per the changing times. In case if we want the “delegated powers” in the hands of the governing bodies not to be misused it is vital to adopt powerful modes of control as applicable in the USA which India has not yet adopted.

No matter how much  fascinating is the concept of “delegated legislation” but along with the advantages there is certainly a different view too. The concept is overlapping in nature as it works to change the legislation it is more likely step up into the responsibility of the “legislature”. There are concerns as there is a probability of being misguided for the political gains at times. On the other note scholar have also pointed out that it is more likely to be against the concept of “separation of power” as given by “Montesquie”.

However in a country like “India” the “parliamentary” control of “delegated legislation seems to be right but certain features from the “American delegated  legislation” like fast decision making process will make the system more likeable .

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[1] Saad Abdulbaqi Sabti,  YP Rama Subbaiah, A comparative study of delegated legislation: With special reference to United States of America and United Kingdom, 3 INTERNATIONAL JOURNAL OF LAW, 70(2017) .

[2] John Locke, Second Treatise of Civil Government 314-322 (Oxford :B. Blackwell, 1948).

[3] Field v. Clarke 143 U.S. 649 (1892).

[4] Wagman v. Southard, 23 U.S. 10 Wheat. 1 1 (1825) .

[5] The Queen v Burah: PC 5 Jun 1978 .

[6] King v Benori Lal Sharma AIR 1943 SC 36 35 .

[7] The Union Of India (Uoi) … vs S. Narayana Iyer .

[8] D.S. Grewal v.The State of Punjab, 1959 AIR 512 .

[9] Panama Refining Co. v. Ryan, 293 U.S. 388

[10] Jain MP, Jain SN. Principles of Administrative law, (5 ed) 47(2007).

[11] Golligon DJ. Administrative Law, (Oxford University Press, New York, (4th Ed), 18(1996) .